Trustee Blog

The Spousal Waiver

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The “spousal waiver”.

Riverside Chapter 7 Trustee Larry Simons uses a spousal waiver when a married person files separately. This waiver is signed by the non-filing spouse in which the non-filer consents to the debtor using the CCP 703 exemptions. If the waiver is not filed and signed, then the debtor must use the CCP 704 exemptions. See my website “RiversideBankruptcyAppearances.com” for a copy of the waiver. Look under the section of “Attorney Resources”.

This form is not one that is common to the Central District of California, however it is often used in the Southern District. I am told that to file the form under ECF, you use the event code “other” or “miscellaneous”.

This form is based on a form used in California State practice and it comes from the language of the California State Statutory code at California Code of Civil Procedure at CCP 703.140(a)(2):

Practice Pointer for using the Spousal Waiver in a bankruptcy case:

In most cases, when one spouse files individually, there is no problem obtaining the consent from the non-filing spouse since they live in the same place and both know about the debtor filing bankruptcy. The problem occurs when the debtor and the non-debtor are separated and are filing for divorce or are in the middle of a heated divorce.

The non-filer will not consent to signing the waiver, nor consent to signing anything. At this point the Debtor must shift to the CCP 704 exemption scheme and this may then leave some assets exposed to the Trustee and the bankruptcy estate. Currently only two Riverside Bankruptcy Trustees use the spousal waiver and it is only used in the case where one spouse is filing bankruptcy and the other spouse has elected not to file for one reason or another.

 

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